Lord McIntosh of Haringey: Quite honestly, this is a beast of a subject. It is probably the most difficult thing to legislate for. No one can complain that in Schedule 1 we have not sought precision, even at the expense of being extremely long-winded. But on this occasion we chickened out. We chickened out in the White Paper. We said that we were,

"minded to ask ACAS to draw up a statutory code of practice to help employers and unions understand what reasonable access means in practice".

In paragraph 22(8) of the schedule we provided for such a code. Indeed, we have gone even further. We realise that it is possible that ACAS may not be able to produce such a code and allowed for the possibility that it might have to be issued by the Secretary of State. There is therefore no precision in these matters; there is no one right answer and I approach these amendments in that spirit. Of course there are arguments on both sides. Of course employers want to ensure that their workers are not distracted from their work and trade unions have an equally proper concern to put their views to workers.

Let me turn to Amendments Nos. 39 and 209. The noble Baroness is concerned about unnecessary disruption of business by campaigners for recognition. The code of access is intended to prevent that. I hope that the noble Baroness will be reassured by what I tell her about it. I am afraid that Amendments Nos. 39 and 209 give an employer too much scope to act unreasonably. It may be entirely reasonable for an employer not to allow access during working hours, but breaks in the working day may be a good opportunity for unions to approach workers and I do not believe that this amendment allows that. Perhaps the noble Baroness could clarify that point.

Under this amendment it would be possible for a hostile employer to designate unsuitable or inconvenient areas for access to workers. It might not quite add up to "non co-operation" but it would certainly be obstructive and we do not want that to happen. These amendments therefore go too far in the direction of helping the employer and too far against the trade union.

I turn to Amendment No. 40. There are two aspects to that and they are both difficult. First, there is the question of providing the union with a list of the names of workers in the bargaining unit. I acknowledge that we said in the White Paper that the employer would be required to do that. However, we reflected on that point particularly in the light of Clause 4 and Schedule 3. Schedule 3 will remove any duty on unions to give

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employers a list of names of union members who are to be balloted about or be called upon to take industrial action. Schedule 3 responds to a reasonable wish on the part of some workers to keep their union membership secret from their employer.

We have come to the conclusion that in relation to recognition ballots, employees could have an equally valid wish not to be identified to the union or unions seeking recognition. However, the union has a perfectly legitimate right, indeed a duty, to communicate with those workers and we provided for that in paragraph 22(6). A union can send material to the works to be balloted via the body conducting the ballot. That ensures that the union can put its case while avoiding the disclosure of names and addresses to the union. Disclosure to the union could also be contrary to the right to privacy guaranteed by Article 8 of the European Convention on Human Rights. Therefore for that reason, which has not been raised in debate, the Government are unable to accept the first part of my noble friend's amendment.

The second part of the amendment also causes problems. We hope that any reasonable employer would do his best to enable a union seeking recognition to have access to workers on the premises. However, we have to accept that some premises are unsuitable for this purpose. We accept too that it could be unduly disruptive to allow a union to call a meeting of workers during working time--I am not talking about mass chapel meetings in printing works at nine o'clock at night. There are problems where the workforce is peripatetic or works largely from home. In the Commons we heard about the problem of employers with a religious objection to trade unions. There are so many difficult issues involved that we believe it would be unwise to place any absolute requirements on the face of the Bill. Instead we propose to deal with these matters in a statutory code which can give good guidance in a more flexible way on what is reasonable and good practice. I hope that the CBI, the TUC and others will be able to contribute to such a code.

The noble Baroness, Lady Miller, did not speak to her amendments to Amendment No. 40 so perhaps I shall leave my comments until she does. The Government's approach to this--it is a statutory code off the face of the Bill--is the only realistic way of dealing with these difficult problems and is certainly better than the restrictions on both sides proposed by the amendments in this group.

Baroness Miller of Hendon: I am not comforted by what the Minister said about Amendment No. 39. I am comforted by the fact that he acknowledges that this is an extremely difficult problem; that the Government were not able to define it either in the Bill or in the Notes to the Bill and that those asked to advise as yet have not been able to come up with an answer. I am not happy with the suggestion that I shall somehow be comforted when I see it in the code. As the Government have had great difficulty until now, I am sure that they will also have difficulty with the code.

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A great deal of legislation is coming out in codes of practice or regulations. We do not have the same opportunity to discuss those as we would do if the measure were before us now. It is not helpful--although as helpful as the Minister can make it--for those who are trying to argue a different case if the grounds for turning down our suggestions are that the Government do not have a better answer but will somehow provide a better answer in the code. We shall not have an opportunity of dealing with that in such detail. That is extremely unfortunate.

The Minister asked whether the provision would prohibit any meeting at any time during the course of the day. I am not sure that it would. The amendment says,

"provided that, unless the employer otherwise agrees, such access shall only be required to be granted on each occasion outside the hours the employees are required to work".
There are many hours during the day when an employee is not required to work and I am sure that some accommodation could be found. However, in view of what the Minister said I shall take that amendment away and see whether we can come up with something that is slightly more acceptable. It would be nice at this stage, after this number of hours--of course there are bigger things to come later on--if we obtained some small sort of co-operation or co-existence.

When I started my remarks I stated that I was somewhat confused about the correct order of things and that I was not sure whether I should speak to Amendments Nos. 40A and 40B, which are amendments to Amendment No. 40, because the noble Lord had earlier dismissed my amendments before I had spoken to them. I have a feeling that that has happened again. I believe that the noble Lord has spoken to Amendment No. 40. I was going to say to the Minister that I do have some very brief notes with me as to why I do not accept Amendment No. 40 as drafted.

7 p.m.

Lord McCarthy: If the noble Baroness wants a small concession, I can see nothing wrong with Amendments Nos. 40A and 40B; indeed, I think that they would make our amendment even better. However, that is not much good because my noble friend the Minister will not accept it. Nevertheless, I am not against the suggestions of the noble Baroness.

Baroness Miller of Hendon: That is the exact point I was trying to make. The noble Lord, Lord McCarthy, says that the Minister will not accept his amendment. The Minister has already spoken to Amendment No. 40 and has said that he will not accept my amendments before I have actually explained their purpose. That brings us back to where we were before. The noble Lord the Deputy Chairman of Committees said that that would not happen. However, I have no objection to any of this. I am absolutely sure that it is all inadvertent. As the Minister is not going to accept any of the amendments, I shall not say all the clever things I have written down.

Lord McIntosh of Haringey: We have done pretty well. We have had an amendment moved; we have had

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another amendment spoken to on the same subject; and we have reached agreement on amendments to an amendment in the same group without drawing breath. I am afraid that the noble Baroness is right. I am not going to accept my noble friend's amendment, even with the sensible amendments she has proposed to it and which he has accepted.

Perhaps I might say a few words about the code of practice. Some people use the derogatory phrase about the Government "chickening out" of decisions, but there are other arguments for a code of practice rather than trying to put everything on the face of the Bill. The principle argument for such a code is that it is drawn up in detailed consultation with those who actually spend their lives doing this sort of thing. It will be drawn up in consultation with the CBI, the TUC, and other employer organisations, together with other organisations and individual unions which wish to become involved. If something goes wrong it can be changed, but that would not be the case with legislation on the face of the Bill.

Therefore, although I have acknowledged that I do not have a perfect answer to all of these questions--and there may not be one; indeed, I suspect that, as so often, it will be different in different work places--I think that the code of practice which we proposed in the White Paper and which we have confirmed in the Bill represents the right approach. I think it would be a mistake to accept any of these amendments because they would restrict the proposed code of practice.